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Judge: Recounts a must for touch-screen machines

By Linda Kleindienst and John Kennedy South Florida Sun-Sentinel
Posted August 28 2004

TALLAHASSEE In another blow to Florida's beleaguered election system, an administrative law judge late Friday struck down a state rule that shields touch-screen voting machines from undergoing manual recounts.

Although it is likely to be appealed by Secretary of State Glenda Hood, the ruling is a victory for a coalition of civil rights and voting reform groups who say a paper trail is needed to assure that votes are accurately counted in the 15 Florida counties that now use the ATM-like machines.

It is the latest stumble for Gov. Jeb Bush's administration, which has already been forced to rescind a controversial felon voter list because of flaws.

It was unclear Friday night whether the ruling would affect voting in touch-screen counties for Tuesday's primary. A state appeal would automatically delay the ruling from taking effect.

Among the counties that use touch-screen machines are Broward, Miami-Dade and Palm Beach in South Florida and Lake and Sumter counties in Central Florida.

"Performing manual recounts in close or disputed elections is necessary not only to ascertain the intent of the voter, but to verify the integrity of the data on each machine," said Howard Simon, executive director of the American Civil Liberties Union of Florida. "Mere assertions by state officials that everything is OK does not restore voter confidence."

Alia Faraj, a spokeswoman for Hood, said no decision has yet been made on whether to appeal the ruling but she reinforced the department's trust in the electronic machines.

"The Secretary of State has full confidence in the touch-screen systems. They worked successfully in 2002 and have done so in hundreds of elections since then," Faraj said. "A manual recount would be unnecessary and logistically impossible. You'd have to print out a supermarket-like receipt that would stretch across the state of Florida."

The ACLU joined Common Cause Florida, the Southwest Voter Registration Education Project, Florida Voters League, People for the American Way and the Florida state chapter of the Southern Christian Leadership Conference in a July 7 challenge of the state rule.

Issued in February, as counties were preparing for the presidential preference primary, the state Division of Elections rule prohibited manual recounts on computerized voting machines in cases of close elections even though state law requires a manual recount of "over votes" and "under votes" when an election margin is less than one-quarter of 1 percent of the votes cast.

An over vote occurs when more than one candidate is ed in one race. An under vote is a ballot where no choices appear to have been made.

"That was a substantial change in the law that, if it was going to be done, should have been done by the Legislature," said Ben Wilcox of Common Cause.

There was legislation filed to do away with the manual recount provision during the spring, but it was never acted on.

In a 22-page ruling issued late Friday, Florida Administrative Law Judge Susan Kirkland said Hood's office overstepped it's legal authority and "does not have the authority to preclude manual recounts for a touch screen voting system because it does not believe that a manual recount will reveal a clear indication of the voters choice."

State officials have argued that in electronic balloting there is no way to determine a voter's intent in an under vote. Recount supporters contend an under vote could be the result of a failure that, if fixed, could reveal an actual vote.

So far, the closest election on the ATM-style machines was in the Jan. 6 state House District 91 race, where Ellyn Bogdanoff won a 12-vote victory over Oliver Parker. Parker's request for a recount was denied, even though there were 137 ballots cast but the machine did not register a vote for a candidate.

State Senate Democratic Leader Ron Klein of Boca Raton, who earlier this month called on the governor to offer all voters a choice of voting with optical scan machines that do leave a paper trail, said the state may want to purchase those machines for the 15 counties.

U.S. Rep. Robert Wexler, D-Boca Raton, filed suits in state and federal courts seeking a paper trail for all votes. A state appeals court and a federal judge threw out the case, but he has appealed.

"On one level, I feel that justice has finally prevailed," Wexler said. "The governor is equally guilty here for ignoring reality."

"What the governor has invited is election night lawsuits by President Bush and Senator Kerry if there is a close election in Florida," Wexler said. "And there will be a calamity in Florida in 2004 which will make the 2000 election appear miniscule."

Mark Hollis of the Tallahassee Bureau contributed to this report.

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